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The scope of the study is confined to the social, economic and legal aspects of domestic
violence, dowry and other aspects related to the sections of 498A and 304B of The Indian Penal
Code in the context of the country India only.
HISTORICAL BACKGROUND
The system of Dowry existed in India even before the British Rule, but not in the format that is
prevalent in the society today. In the pre-colonial period, dowry was an institution managed by
women, for women, to enable them to establish their status and have recourse in an
emergency. In this ancient system of dowry, the parents of the bride, even her kith and kin, all
gave wealth to her in the form of valuable gifts etc. It was just like how parents used to give a
part of wealth to their sons, so did they give it to their daughters too during the daughters
marriage. What is very important to be noted here is that, the valuables or the wealth was given
to the bride, and NOT to the groom or his family. In other words, the dowry wealth continued to
be owned by the wife and not by the husband or his family. This gave the required financial
independence to women who would even manage the income from their agricultural land, etc.
REVIEW OF LITERATURE
The problem of dowry, which is one of the major causes for violence, cannot be solved only with
the help of law. She said that patriarchal norms influence the institution of marriage, subverting
the role of women. Further, caste too plays a pivotal role in reinforcing dowry. Marriage within
the caste is considered important, with dowry as an essential component.
Every time a case relating to dowry death comes up, it causes ripples in the pool of the
conscience of this Court Nothing could be more barbarous, nothing could be more heinous than
this sort of crime. The root cause for killing young bride or daughter-in-law is avarice and greed.
All tender feelings, which alone make the humanity noble, disappear from the heart. Kindness,
which is the hallmark of human culture, is buried. Sympathy to the fairer sex, the minimum
sympathy is not even shown. The seedling which is uprooted from its original soil and is to be
planted in another soil to grow and bear fruits is crushed
RESEARCH METHODOLOGY
The researcher will do a descriptive and explanatory doctrinal study using various sources viz.
books, other research papers and websites like Heinonline, Manupatraand EBSCO.
HYPOTHESIS
Though section 498A was enacted with many hopes and desires, it has not produced any
worthwhile convictions. Many cases end in acquittal and the very process is agonizing as it may
take several years. We seem to have trusted the law and rest content after making a law. Law has
a very limited role. Just making a law to solve a grave problem like DV is not enough The
emphasis should be beyond the law and referred to the role of society.
REFERENCES
http://www.498a.org/contents/judgements/SC_Defines_498a_and_304b_in_judgment.pdf
http://legalsutra.com/1009/a-critical-appraisal-of-s-304b-of-ipc-a-study-through-case-laws/
http://www.hitxp.com/articles/history/origin-dowry-system-bride-woman-india-british/
http://304b.blogspot.in/p/section304b-indian-penal-code-dowry.html
CONTENTS
INTRODUCTION
AIM OF THE STUDY
SIGNIFICANCE OF THE STUDY
SCOPE OF THE STUDY
HISTORICAL BACKGROUND
REVIEW OF LITERATURE
HYPOTHESIS
REFERENCES
1. INTRODUCTION
2. HISTORICAL BACKGROUND
3. 498 A AND STATUS OF WOMEN
4. SECTION 498A: SOME SIGNIFICANT PROBLEMS
5. SEC 498A AND THE ALLEGATION OF MISUSE
6. CRIMINAL LAW ON DOMESTIC VIOLENCE
7. ARTICLE 15 OF INDIAN CONSTITUTION
8. DOWRY ACT
9. CONCLUSION
10. BIBLIOGRAPHY
INTRODUCTION
This menace of Dowry has become a social menace in modern India leading to the oppression on
women, physical violence on the bride, causing a financial and emotional stress on the parents of
the bride, marital conflict and so on. This menace exists even today in the society even though it
is a criminal offence to take Dowry during marriage.
Prevention of domestic violence is a burning issue all over the world. But, as a society, India has
not acknowledged the existence of violence within the family. Domestic violence is not confined
to any one socio-economic, ethnic, religious, racial or age group. It is an issue of increasing
concern because it has a negative effect on all family members, especially children. It has been
found that children, who witness violence in the home, suffer many of the symptoms that are
experienced in children, who are directly abused.
Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave
injury or danger to life, limb or health, whether mental or physical of the woman is required to be
established in order to bring home the application of Section 498A IPC. Cruelty has been defined
in the Explanation for the purpose of Section 498A. Though women are accused of misusing
Section 498A not many women are aware about the law or have used it.
The system of Dowry existed in India even before the British Rule, but not in the format that is
prevalent in the society today. In the pre-colonial period, dowry was an institution managed by
women, for women, to enable them to establish their status and have recourse in an
emergency. In this ancient system of dowry, the parents of the bride, even her kith and kin, all
gave wealth to her in the form of valuable gifts etc. It was just like how parents used to give a
part of wealth to their sons, so did they give it to their daughters too during the daughters
marriage. What is very important to be noted here is that, the valuables or the wealth was given
to the bride, and NOT to the groom or his family. In other words, the dowry wealth continued to
be owned by the wife and not by the husband or his family. This gave the required financial
independence to women who would even manage the income from their agricultural land, etc.
HISTORICAL BACKGROUND
The status of women in any civilization shows the stage of evolution at which, the civilization
has arrived. The term 'status' includes not only personal and proprietary rights but also duties,
liabilities and disabilities. In the case of a Indian woman, it means her personal rights,
proprietary rights, her duties, liabilities and disabilities visavis the society and her family
members.
With regard to the status of women in Indian society at large, no nation has held their women in
higher esteem than the Hindus. Perhaps, no other literature has presented a more admirable type
of woman character than Sita, Maitriya, Gargi. The Indian civilization has produced great
women ranging from Braham vadinis (lady Rishl) to states woman, from ideal wife to warrior
queen. It dates back to thousands of years. Hindu mythology witnesses that the status of Hindu
woman during the vedic period was honourable & respectable.
Now that we are no more under aggression or invasion, we should allow the women community
to regain their power, fame and name. It is we, who made Indira Gandhi, a woman as the prime
Minister. It is we who placed the Mother before the Father in priority for reverence? Matr devo
bhava was the first Upanishad exhortation to the young. Hinduism is the only religion whose
symbolism places the Feminine on a par with the Masculine in the profound concept of
SivaSakthi culminating in the image of ArdharnariIsvara. We have honored our country as our
Motherland "Bharat Mata" and our nationalism has grown up from the seed Mantra "Vande
Mataram".
To analyze the impact of Islam on the status of women we have to look at the immediate preIslam Meccan society. It was tribal but had an active mercantile class The prophet's first wife was
a businesswoman the prophet had actually been her employee. The first Umayyad ruler's
(Muaviya) mother Hinda actually controlled her clan and incited them to fight against Muslims.
Women used to openly propose to men. Infact when the prophet accompanied by his uncle, was
going to visit his future wife Bibi Khatija to propose to her, a woman stopped him on the way
and offered him a hundred camels if he would marry her. "From affection springs grief, From
affection springs fear, For one who is wholly free from affection, There is no grief, much less
fear."
One would expect that in medieval times women were almost like domesticated pets caged in the
house, considering all the equality and libertarian movements the mankind has gone though.
Lawmaker Manu's oftquoted statement that women are not worthy of freedom strengthens this
expectation. However, the inscriptions, literary sources and sculptures of the period give an
astonishingly different picture of status of women in South India in medieval times. It is evident
from an inscripture of 1187 A.D. that the Jain nuns enjoyed the same amount of freedom as their
male counterparts. There were female trustees, priestesses, philanthropists, musicians and
scholars.
Bondmaids and Working Women
All menial tasks like cleaning in temples and private households were undertaken by bondmaids
whose position was not high in the society. The saintpoet Basaveshwara tried to better their lot
and that of their children by declaring that after initiation into Veerashaivism, the latter were to
be considered holy and duly honored. In addition to their household duties, women gave a
helping hand to their men in their vocations. The occupation of a nurse (dhatri) was quite
common. Women also worked in fields.
Institution of marriage
Marriage was compulsory for all the girls except for those opted for asceticism. Brahman girls
were married between ages 8 and 10 from sixth or century onwards up to the modern times.
Polygamy was permitted to all who could afford and it was especially popular among
Kshatriaysa for political reasons. According to Mansasollsa, the king should marry a Kshatria
girl of noble birth for a chief queen though he is permitted to have Vaisya or Sudra wives for
pleasure.
Sati or Sahagamana
Sati was prevalent among certain classes of women, who either took the vow or deemed it a great
honor to die on the funeral pyres of their husbands. Ibn Batuta observed that Sati was considered
praiseworthy by the Hindus, without however being obligatory. The Agni Purana declares that
the woman who commits sahagamana goes to heaven and Medhatiti pronounced that Sati was
like suicide and was against the Shastras. In an age of such divergent views, women of the
Deccan followed a middle path. They were not coerced, although several wives committed Sati.
The majority of the widows did not undergo Sati.
Widows
Alberuni writes that Indian women preferred self immolation by Sati to the suffering of life of a
widow. Ibn Batuta also felt that the plight of widows was miserable. A widow was considered an
inauspicious person and was prohibited from wearing colorful clothes, ornaments, decorate hair,
as is seen from descriptions in literature.
A few women of the time who despised their husbands, attracted other men by wanton behaviors.
A sculpture in Bhatkal depicts a case of a woman's infidelity. A husband catches the paramour of
his wife red handed and is about to punish him.
The definition of dowry is wide to include all sorts of properties, valuable securities etc. given or
agreed to be given directly or indirectly. Therefore the amount of Rs.20,000/ and 1.5 acres of
land agreed to be given at the time of marriage is dowry, even though the said land was agreed to
be transferred in the name of the deceased as 'pasupukumkuma' by executing a deed Vemuri
Venkateswara Rao v. State of Andhra Pradesh1
The population base of this movement was the rural and the toiling. This was important because
the women of this group were already organized, although not all of these organizations with this
base turned their focus toward feminist causes. 1974 was a pivotal year for the movement. Not
only did it see the founding of POW (the Progressive Organization of Women), but it was the
year that the official Status of Women Commission published their report, Towards Equality, on
women's low and ever decreasing status in Indian society. This paper would add much fuel to the
impending fire and validate it to the mainstream population. There were large conferences in
Pune and Trivandrum in 1975 on women's issues further bringing the movement into the
mainstream. Many autonomous groups popped up with different agendas and issues.
term which may extend to three years and shall also be liable to fine. The offence is Cognizable,
noncompoundable and nonbailable.
The section provides an explanation that elaborates the meaning of cruelty as follows:
a) Any wilful conduct which is of a nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to her life, limb, or health (whether physical or mental) of the
woman or
b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand."
In another case Parveen Mehta vs Inderjit Mehta 11/07/2002 court clearly explained the
meaning of the term cruelty as matrimonial offence and cause for granting divorce decree.
In this case the defendant and appellant were husband and wife and the wife was suffering
from some ailment and under treatment which was not disclosed to the husband during
marriage. Thus the husband had appealed for a divorce decree on the grounds of cruelty
and desertion which was granted by the High court and confirmed by Supreme Court
when appealed against that order. Supreme Court thus dismissed the appeal from the wife
and upheld the decision of High Court favouring divorce.
498a can only be invoked by wife/daughter in law or her relative. Most cases where Sec 498A is
invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India)
as they are mere blackmail attempts by the wife (or her close relatives) when faced with a
strained marriage. In most cases 498a complaint is followed by the demand of huge amount of
money (extortion) to settle the case out of the court. This section is nonbailable(you have
toappear in court and get bail from the judge), noncompoundable (complaint can't be withdrawn)
and cognizable (arrests without investigation or warrants)
[Agnes 1998]. This resulted in their articulating a demand for a law on domestic violence only
for married women.
The IPC was thus amended in 1983 and Sec 498A was added. It reads as follows:
Sec 498A: Husband or relative of husband of a woman subjecting her to cruelty.
Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty
shall be punished with imprisonment for a term, which may extend to three years and shall also
be liable to a fine.
Explanation for the purpose of this section, "cruelty" means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demands for any property or valuable security or is on
account of failure by her or any person related to her to meet such demand.
In the last 20 years of criminal law reform a common argument made against laws relating to
violence against women in India has been that women misuse these laws. The police, civil
society, politicians and even judges of the High Courts and Supreme Court have offered these
arguments of the "misuse' of laws vehemently. The allegation of misuse is made particularly
against Sec 498A of the IPC, and against the offence of dowry death in Sec 304B. One such view
was expressed by former Justice K T Thomas in his article titled 'Women and the Law', which
appeared in The Hindu.21 The 2003 Malimath Committee reporton reforms in the criminal
justice system also notes, significantly, that there is a "general complaint" that Sec 498A of the
IPC is subject to gross misuse ituses this as justification to suggest an amendment to the
provision, but provides no data to indicate how frequently the section is being misused. It is
important therefore that such "arguments" are responded to, so as to put forth a clearer picture of
the present factual status of the effect of several criminallaws enacted to protect women.
Domestic violence and abuse by spouses and family members are complex behaviours and the
social organisation of courts, the police and legal culturessystematically tend to devalue domestic
violence cases. Sec 498A was introduced in the IPC in 1983 and the reforms of the past 20 years
have not beenadequately evaluated at all by the government with respect to their deterrence
goals, despite the institutionalization of law and policy to criminalise domestic violence. A
programme of research and development is urgently required to advance the current state of
knowledge on the effects of legal sanctions on domestic violence. The narrow or perhaps almost
negligible study done by law enforcement agencies about the deterrent effects of legal sanctions
for domesticviolence stands in high contrast with the extensive efforts of activists, victim
advocates and criminal justice practitioners in mobilising law and shaping policy to stop
domestic violence. It is important to do these studies to correct the general misconceptions that
women are misusing the law by filing false cases against their husbands and inlaws in order to
harass them and get them convicted. The perspective of the state and its agencies needs to change
from that ofzprotecting the husbands and inlaws against potential "misuse" of the laws of
domestic violence to that of implementing their real purpose to recognise that such violence is
a crime and protect women who have the courage to file complaints against their abusers.
Criminal law on domestic violence
On June 23, 2005 the cabinet approved the Protection of Women from Domestic Violence Bill,
2005, after which it received assent from Parliament. This approval brings to fore a new civil law
on domestic violence, which provides immediate emergency remedies for women facing
violence such as protection orders, non molestation orders, the right to reside in the shared
household, etc. At this crucial juncture it is important that we re examine the historical
background of these law reforms, and the existing criminal law provisions against domestic
violence mainly Section 498A of the Indian Penal Code (IPC) to understand why a coordinated
approach including civil and criminal law remedies is needed to address violence against women
within the home.
Domestic violence has since 1983 been recognised as a crime and also constitutes a considerable
part of the workload of police, prosecutors and the courts. Few would claim however that the
criminal law alone can solve the problem of domestic violence,1 which laid the foundation for
the demand of a civil law to protect women and children. It is nonetheless legitimate to ask what
the task of the criminal law should be in this sphere and to examine how far it is currently
successful in carrying out that task.
Dowry act
Definition of dowry. In this Act, "dowry" means any property or valuable security given or
agreed to be given either directly or indirectly.
(a) By one party to a marriage to the other party to the marriage, or
(b) By the parent of either party to a marriage or by any other person, , to either party to the
marriage or to any other person, At or before [(Note: Subs. by Act 43 of 1986, sec.2) or any time
after the marriage] [(Note: Subs. by Act 63 of 1984, sec.2) in connection with the marriage of
the said parties, but does not include] dower or mahr in the case or persons to whom the Muslim
Personal Law (Shariat) applied.
Note: Explanation I omitted by act 63 of 1984, sec.2).
Explanation II The expression "valuable security" has the same meaning as in section 30 of the
Indian Penal Code (45 of 1860).2
"Dowry" in the sense of the expression contemplated by Dowry Prohibition Act in a demand for
property of valuable security having an inextricable nexus with the marriage i.e. it is a
consideration from the side of the bride's parents or relatives to the groom or his parents and/or
guardian for the agreement to wed the bridetobe. But where the demand for property or valuable
security has no connection with the consideration for the marriage it will not amount to a
demand for dowry. The demand for valuable presents made by the appellants on the occasions of
festivals like Deepavali is not connected with the wedding or marriage and these demands will
not constitute dowry as defined in section 2 of Dowry Prohibition Act, 1961 Arjun Dhondiba
Kamble v. State of Maharashra, 3
Any property given by parents of the bride need to be in consideration of the marriage, it can
even be in connection with the marriage and would constitute dowry Rajeev v. Ram Kishan
Jaiswal, 4
(iv) There had been no agreement between either parties to give any property or valuable security
to the other party at or before or after the marriage. The demand of T.V., refrigerator, gas
connection, cash of Rs. 50,000/ and 15 tolas of gold are not demand of dowry but demand of
valuable security in view of section 2 Shankar Prasad Shaw v. State, 5
CONCLUSION
Domestic violence needs a coordinated and systemic response from the justice system. While
Sec 498A has been one of the most significant criminal law reforms protecting women's rights,
this reform is not enough. Ultimately we need to remember that criminal law is indeed a blunt
tool, as it is very difficult to change police culture though the law may consider domestic
violence against women an offence, the police may still not comply with the law and not
implement it effectively. Therefore, in order to move towards an effective working of Sec 498A
and other criminal law remedies, it is crucial that we put in place a new model of policing the
victim empowerment model as described above. A model that will put in place proarrest
procedures and social service networks at the police station in order to give the victim alternative
support services is needed. Most importantly, we need to work on standard and regular policing,
which will ensure that domestic violence is taken seriously.
Simply passing an Act and jotting it down on legal paper does not ensure that its main purpose
will be served. In order to tackle this problem, the Ministry of Women and Child Development
has issued another notification laying down rules framed for accurate implementation of the Act
which also includes appointment of protection officers, service providers and counselors.
Another very important feature of the new Act is women's right to secure housing, the statement
said, adding it provides a right to reside in the matrimonial and shared household, whether or not
she has any legal title in the household.
Bibliography
Bard, M and J Zacker (1971): The Prevention of Family Violence: Dilemmas of Community
Intervention, Journal of Marriage and the Family, Vol. 33, pp 677 82.18
Hoyle, C and A Sanders (2000): Police Response to Domestic Violence: From Victim Choice to
Victim Empowerment?, Brit J Criminol, 40, pp 1436. IACP (1967): International Association of
Chiefs of Police, IACP, p 3.